DePaul Law Review
Volume 42
Issue 4 Summer 1993: Symposium - The Ratification
of the International Covenant on Civil and Political
Rights
Article 4
United States Ratification of the Covenant on Civil
and Political Rights: The Significance of the
Reservations, Understandings, and Declarations
David P. Stewart
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David P. Stewart, United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations,
Understandings, and Declarations, 42 DePaul L. Rev. 1183 (1993)
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UNITED STATES RATIFICATION OF THE COVENANT
ON CIVIL AND POLITICAL RIGHTS: THE SIGNIFICANCE
OF THE RESERVATIONS, UNDERSTANDINGS, AND
DECLARATIONS
David P. Stewart*
I.
INTRODUCTION
The recent ratification by the United States of the International
Covenant on Civil and Political Rights (Covenant) was a very significant development in the field of international human rights law.'
Considered by many to be the single most important human rights
treaty, the Covenant guarantees those basic rights and freedoms
which form the cornerstones of a democratic society. Not only does
U.S. adherence reflect and reinforce a long-standing national com* Assistant Legal Adviser for Human Rights and Refugees, U.S. Department of State. Stewart
was involved in the Executive Branch's efforts to obtain the Senate's advice and consent to ratification of the Covenant. However, the views expressed here are those of the author and do not
necessarily represent the position of the Department of State or the United States Government.
An abbreviated version of this article has been published at 14 HUM. RTS. L. J. 77 (1993).
1. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966,
999 U.N.T.S. 171 (entered into force Mar. 23, 1976; adopted by the.United States Sept. 8, 1992)
[hereinafter ICCPR]. See generally David Weissbrodt, United States Ratification of the Human
Rights Covenants, 63 MINN. L. REV. 35 (1978); THE INTERNATIONAL BILL OF HUMAN RIGHTS
(Louis Henkin ed., 1981); U.S. RATIFICATION OF THE HUMAN RIGHTS TREATIES: WITH OR WITHOUT RESERVATIONS? (Richard B. Lillich ed., 1981); UNITED STATES RATIFICATION OF THE INTERNATIONAL COVENANTS ON HUMAN RIGHTS (Hurst Hannum & Dana D. Fischer eds., 1993).
The Covenant was signed by the United States in 1977 and transmitted to the Senate the
following year together with three other human rights treaties. See Message from the President
Transmitting Four Treaties Pertaining to Human Rights, 14 WEEKLY COMP. PRES. Doc. 395
(Feb. 23, 1978). The Senate Foreign Relations Committee held three days of hearings in November 1979 but did not reach any recommendations or report favorably on any of the treaties. See
International Human Rights Treaties: Hearings Before the Senate Committee on Foreign Relations, 96th Cong., 1st Sess. (1979). Following the recommendation of President Bush on August
5, 1991, the Senate Foreign Relations Committee held another hearing on November 21. See
International Covenant on Civil and Political Rights: Hearing Before the Senate Committee on
Foreign Relations, 102d Cong., Ist Sess. (1991) [hereinafter Hearing]. The Committee favorably
reported the treaty to the Senate after a unanimous vote taken on March 4, 1992. SENATE COMM.
ON FOREIGN RELATIONS. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. S. EXEC.
REP. No. 23, 102d Cong., 2d Sess. (1992), reprinted in 31 I.L.M. 645 (1992). The Senate gave its
advice and consent to ratification on April 2, 1992. 138 CONG. REC. S4781-84 (daily ed. Apr. 2,
1992) [hereinafter APPROVAL].
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mitment to those values, it will also enhance the U.S. role in protecting and promoting the rule of law and democratic ideals internationally. As President Bush stated in August 1991, in urging
renewed Senate consideration of the Covenant, ratification strengthens the ability of the United States to influence the development of
appropriate human rights principles in the international community
and provides an additional and effective tool for efforts to improve
respect for fundamental freedoms in many problem countries.2
The unanimous approval of the Covenant by the U.S. Senate also
signaled an important victory in overcoming - or at least neutralizing - a persistent thread of hostility in that body and in the American legal community to ratification of human rights treaties.3 While
the United States has for years been a party to a number of such
treaties, including those relating to the political rights of women,
slavery and the slave trade, slave labor, and refugees,4 there is a
long and contentious history to Senate consideration of the Covenant itself, including the narrow defeat of the so-called Bricker
Amendment to the U.S. Constitution in early 1954.5 As a result of
2. See Hearing, supra note 1, at 4-5 (statement of Richard Schifter, Assistant Secretary of
State for Human Rights and Humanitarian Affairs).
3. At the hearing before the Senate Foreign Relations Committee, for example, Senator Helms
opened the proceedings by noting that the Covenant is "a seriously flawed convention" and stating, "I cannot comprehend why the sudden rush to approve a convention that has been lying
around this place for a quarter of a century." Hearing,supra note 1, at I. The Committee vote,
however, was 19-0 in favor of the Covenant, see SENATE COMMITTEE ON FOREIGN RELATIONS,
supra note I, at 3, reprinted in 31 I.L.M. at 649, and the full Senate gave its approval in executive session without objection, see APPROVAL, supra note I, at S4783.
4. See Convention on the Political Rights of Women, opened for signature Mar. 31, 1953, 193
U.N.T.S. 135 (entered into force for the United States July 7, 1976, 27 U.S.T. 1909); Convention
to Suppress the Slave Trade and Slavery, concluded Sept. 25, 1926, 60 L.N.T.S. 253 (entered into
force for the United States Mar. 21, 1929, 46 Stat. 2183); Protocol Amending the Slavery Convention, done Dec. 7, 1953, 182 U.N.T.S. 51 (entered into force for the United States Mar. 7,
1956, 7 U.S.T. 479); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
the Institutions and Practices Similar to Slavery, opened for signature Sept. 7, 1956, 266
U.N.T.S. 3 (entered into force for the United States Dec. 6, 1967, 18 U.S.T. 3201); Protocol
Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 606 U.N.T.S. 267 (entered into force for the United States Nov. 1, 1968, 19 U.S.T. 6223).
5. Contemporary opposition to the Covenant and to other human rights treaties is essentially a
legacy of the 1950s, rooted in two related domestic political phenomena - Cold War anticommunism and hostility to the emergent civil rights movement. The principal argument arrayed
against the Covenant (and the Genocide Convention) at that time was that ratification posed a
threat to the federal system of government. More particularly, the argument was that use of the
treaty-making power to establish and protect individual rights would violate, or at least unacceptably limit, the rights of the individual states and deprive U.S. citizens of their right to self-government. Underlying this concern, of course, was fear that the federal government would rely on the
treaty-making power in assuming an activist role in the elimination of legalized racial discrimination, then still prevalent in a number of southern states. Moreover, the debate over human rights
1993]
SIGNIFICANCE OF THE RESERVATIONS
1185
that debate, the United States was for decades effectively foreclosed
from becoming party to major multilateral conventions promoting
human rights, even those which it actively supported in international
fora. Indeed, the United States did not become a party to the first
post-war treaty of this type, the Convention on the Prevention and
Punishment of the Crime of Genocide (Genocide Convention), 6 until
1988, forty years after it was written. Four other major human
rights treaties submitted to the Senate along with the Covenant during the Carter Administration received no endorsement during the
Reagan and Bush Administrations. With approval of the Genocide
Convention, however, and the Senate's subsequent advice and con-
sent to ratification of the United Nations Torture Convention,8 the
groundwork had been prepared for resolving the various issues
which had stood for many years in the way of ratification of the
Covenant.
treaties initially took place amid a genuine fear of communist subversion and ideological assault
aimed at taking over the United States and the remainder of the free world. Thus, it was not just
that the treaties were seen as improperly opening to international review and regulation matters
thought to be exclusively domestic, but that the ensuing loss of U.S. sovereignty to an illegitimate
world government (the United Nations) was part of the general effort to eliminate democracy.
The debate culminated in the defeat in January 1954 of the so-called Bricker Amendment to the
U.S. Constitution, which was actually a series of proposals offered from July 1951 to early 1954.
In its most developed form, the Bricker Amendment would have provided, inter alia, that any
treaty denying or abridging any right enumerated in the Constitution would have no force or
effect, that the rights of the states under the Tenth Amendment would be preserved from federal
encroachment, and that a treaty would become effective as internal U.S. law only through enactment of appropriate legislation by the Congress. See generally NATALIE H. KAUFMAN. HUMAN
RIGHTS TREATIES AND THE SENATE: A HISTORY OF OPPOSITION (1990).
6. Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9,
1948, 78 U.N.T.S. 277 (entered into force for the United States Feb. 23, 1989), G.A. Res. 260A,
U.N. GAOR, 3d Sess., Supp. No. 1, at 174, U.N. Doc. A/810 (1948); Genocide Convention
Implementation Act, 18 U.S.C. §§ 1091-1093 (1988).
7. Together with the International Covenant on Civil and Political Rights, the Carter Administration transmitted the International Covenant on Economic, Social and Cultural Rights, opened
for signature Dec. 19, 1966, 993 U.N.T.S. 3, 6 I.L.M. 360 (1967) (entered into force Jan. 3,
1976); the International Convention on the Elimination of All Forms of Racial Discrimination,
opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 (signed by the United States Sept. 28,
1966); and the American Convention on Human Rights, opened for signature Nov. 22, 1969,
1144 U.N.T.S 123, reprinted in 9 I.L.M. 673 (1970). Subsequently, in November 1980, the
Carter Administration transmitted the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13 (entered into force
Sept. 3, 1981). All four treaties remain pending before the Senate.
8. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51
(1985), reprinted in 23 I.L.M. 1027, as modified, 24 I.L.M. 535 (1985) (entered into force June
26, 1987). Proposed implementing legislation is currently pending in the Congress. On the Torture
Convention generally, see David P. Stewart, The Torture Convention and the Reception of International Criminal Law Within the United States, 15 NOVA L. REV. 449 (1991).
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The elements of this accommodation are contained in the various
reservations, understandings, and declarations upon which U.S. ratification was conditioned.9 Based largely on proposals initially set
forth in the Carter transmittal, this "package" of provisos was proposed by the Administration after extensive inter-agency review and
consultations with various nongovernmental human rights organizations and other interested academics, practitioners, and specialists.
It also responded to the concerns of those who felt the Covenant was
a "seriously flawed" instrument, including provisions inimical to established constitutional protections.' Although during the hearings
a number of witnesses criticized the package as unnecessary, unhelpful, and proof of U.S. refusal to accept the full measure of its
international obligations, it was accepted without change, or even
significant debate, by the Senate."
This Article briefly reviews the most important provisions of the
Covenant and examines the specific reservations, understandings,
and declarations upon which the Senate's advice and consent to ratification was based. An articulation of the rationale behind, as well
as the criticisms of, the conditions the United States imposed on its
acceptance of the Covenant will illustrate the problems which must
be resolved when consideration turns to other pending human rights
treaties.
II.
ESSENTIAL PROVISIONS
The rights guaranteed by the International Covenant on Civil and
Political Rights are essentially those civil and political rights reflected in the democratic tradition which limit the power of the
State to impose its will on the people under its jurisdiction. The
principal undertaking assumed by States Party, set forth in Article
2 of the Covenant, is to provide those rights to all individuals within
their territories and subject to their jurisdiction without regard to
race, color, sex, language, religion, political or other opinion, national or social origin, property, and birth or other status.' 2 The
equal right of men and women to the enjoyment of these rights is
9. See
APPROVAL,
supra note I, at S4783-84.
10. Senator Helms, for example, expressed this view at the very outset of the Senate Foreign
Relations Committee Hearing. Hearing, supra note 1, at 1-2.
I1.
APPROVAL.
supra note I, at S4781-84.
12. ICCPR, supra note I, art. 2(1), 999 U.N.T.S at 173.
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SIGNIFICANCE OF THE RESERVATIONS
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specifically protected."3 States Party must adopt legislation or other
measures necessary to give effect to rights under the Covenant and
provide effective legal remedies for their violation. 4
Among the specific rights enumerated in the Covenant are the
following: freedom of thought, conscience, and religion;, 5 freedom of
opinion and expression; 6 freedom of association;1 7 the right of
peaceful assembly;'" the right to vote; 19 equal protection of the
law; 2" the right to liberty and security of person, including protection against arbitrary arrest or detention; 2' the right to a fair trial,
including the presumption of innocence;2 2 the right of privacy;23
freedom of movement, residence, and emigration;24 freedom from
slavery and forced labor;25 protection from torture or cruel, inhuman, or degrading treatment or punishment; 26 and the general right
to protection of life, including protection against the arbitrary depri27
vation of life.
Other provisions concern freedom from imprisonment for debt; 28
the right of all persons deprived of their liberty to be treated with
humanity and respect for the dignity of the human person; 29 the
right to compensation for unlawful arrest or detention;30 the right of
every child to acquire a nationality;3 ' the right to marry and general
protection of the family; 2 and the right of persons belonging to ethnic, religious, or linguistic minorities to enjoy their own culture, pro13. Id. art. 3, 999 U.N.T.S. at 174.
14. Id. art. 2(2), 999 U.N.T.S. at 173-74. Since the rights and freedoms protected by the Covenant are already recognized under state and federal law, the United States did not consider any
additional measures to be necessary.
15. Id. art. 18(l), 999 U.N.T.S. at 178.
16. Id. art. 19(1)-(2), 999 U.N.T.S. at 178.
17. Id. art. 22, 999 U.N.T.S. at 178.
18. Id. art. 21, 999 U.N.T.S at 178.
19. Id. art. 25(b), 999 U.N.T.S. at 179.
20. Id. art. 14(l), 999 U.N.T.S. at 176.
21. Id. art. 9(l), 999 U.N.T.S. at 175.
22. Id. art. 14(1)-(2), 999 U.N.T.S at 176-77.
23. Id. art. 17(1), 999 U.N.T.S. at 177.
24. Id. art. 12(l)-(2), 999 U.N.T.S at 176.
25. Id. art. 8, 999 U.N.T.S. at 175.
26. Id. art. 7, 999 U.N.T.S. at 175.
27. Id. art. 6(1), 999 U.N.T.S. at 174.
28. Id. art. 11, 999 U.N.T.S. at 176.
29. Id. art. 10(1), 999 U.N.T.S. at 176.
30. Id. art. 9(5), 999 U.N.T.S. at 176.
31. Id. art. 24(3), 999 U.N.T.S. at 179.
32. Id. art. 23(2), 999 U.N.T.S. at 179.
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fess and practice their own religion, and use their own language."
The Covenant contains provisions regarding the general right of
peoples to self-determination and to dispose of natural wealth and
resources, subject to the principles of mutual benefit and international law.34
The Covenant permits States Party to condition or restrict the
exercise of these rights to varying degrees and contains a derogation
clause which allows the temporary and limited suspension of some
but not all of the rights "[i]n time of public emergency which
threatens the life of the nation," provided those rights are not
abridged on a discriminatory basis. 5 Among the "non-derogable
rights" are the right to life, protection against torture and cruel,
inhuman, or degrading treatment or punishment, and freedom of
thought, conscience, and religion. 6
Importantly, the Covenant established a Human Rights Committee, consisting of eighteen individuals elected by States Party to
serve in their individual capacities, to examine reports from States
Party and otherwise oversee compliance with the provisions of the
Covenant.3 7 The Committee has no enforcement authority, but
under Article 41, a State may accept the Committee's competence
to receive and consider communications by another State Party alleging nonfulfillment of its obligations under the Covenant, provided
that the other State has made a similar declaration. Under the First
Optional Protocol to the Covenant, which the United States has not
signed, States Party may recognize the competence of the Committee to consider complaints from individuals as well. 38
lI.
RESERVATIONS, UNDERSTANDINGS,
AND DECLARATIONS
Most commentators agree that existing U.S. law generally complies with the Covenant. In fact, as indicated above, almost all of
the individual rights and freedoms embodied in the Covenant have
33. Id. art. 27, 999 U.N.T.S. at 179.
34. Id. art. ](1)-(2), 999 U.N.T.S. at 173.
35. Id. art. 4(l), 999 U.N.T.S. at 174.
36. Id. art. 4(2), 999 U.N.T.S. at 174. The other rights from which no derogation may be
made under this article are freedom from slavery and servitude, imprisonment for debt, protection
against retroactive criminal prosecutions, and the right to recognition as a person under the law.
37. See generally id. arts. 28-45, 999 U.N.T.S. at 179-84 (relating to the Committee).
38. Id. Optional Protocol. The First Optional Protocol entered into force on March 23, 1976.
The Second Optional Protocol, which came into force in July 1991, prohibits the death penalty.
The United States has signed neither. A Third Optional Protocol has recently been proposed regarding the right to a fair trial.
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SIGNIFICANCE OF THE RESERVATIONS
1189
long been enjoyed by Americans by virtue of the U.S. Constitution
and the constitutions and laws of the states.
Nonetheless, when the Covenant was transmitted to the Senate in
February 1978, along with three other human rights treaties, 39 it
was accompanied by a number of proposed reservations, understandings, and declarations, considered necessary at the time to meet anticipated constitutional and legal objections and to make certain
other adjustments in light of U.S. law. Some have criticized this as
a costly tactical error on the part of the Carter Administration."'
The Senate Foreign Relations Committee held extensive hearings on
the treaties in November 1979, including considerable debate over
the necessity of the various provisos, but the Soviet invasion of Afghanistan and the hostage crisis in Iran (among other events) prevented final consideration before the change of administrations in
1981.
For its part, the Reagan Administration chose to focus its attention first on winning approval for the 1948 Genocide Convention,
which had been pending before the U.S. Senate since President Truman transmitted it in 1949. When that effort proved successful in
1988, the Administration turned to the task of gaining the Senate's
advice and consent to ratification of the Torture Convention, which
occurred in August 1990. In each of these exercises, it proved necessary to accept a series of reservations, understandings, and declarations, generally dealing with issues of federalism, perceived conflicts
with the U.S. Constitution, and differences with U.S. law.
Thus, when attention turned to consideration of the Covenant in
August 1991, account had to be taken both of the proposals which
the Carter Administration had made when first transmitting the
Covenant to the Senate, as well as of the provisos which had been
agreed to with respect to the Genocide and Torture Conventions. In
substance, although it contained some modifications and new elements, the package of reservations, understandings, and declarations
formally proposed by the Bush Administration in November 1991,
and ultimately adopted by the U.S. Senate, was not significantly dif39. The other treaties were the International Covenant on Economic, Social and Cultural
Rights, supra note 7, the International Convention on the Elimination of All Forms of Racial
Discrimination, supra note 7, and the American Convention on Human Rights, supra note 7. The
Convention on the Elimination of All Forms of Discrimination Against Women, supra note 7, was
transmitted separately in 1980.
40. See, e.g., Weissbrodt, supra note 1, at 78.
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ferent from the one put forward some thirteen years earlier.4 '
Some have criticized these provisos as excessive (there, are five
reservations, five understandings, and four declarations), unnecessary, and evidence of U.S. unwillingness to accept the international
human rights regime. In fact, the United States has accepted the
obligations of the Covenant with very few exceptions and limitations. While the "package" seems large, a careful reading demonstrates that each proviso addresses a legitimate issue and none is
contrary to the object and purpose of the treaty. Importantly, there
is no "general" reservation of the type previously attached to the
Genocide Convention.
A.
Reservations
1. Freedom of Speech and Expression
It is not legally possible for the United States to agree to treaty
undertakings which would require action prohibited by the U.S.
Constitution; even if such an international obligation were accepted,
it could not be effective as a matter of domestic law.4 In this regard, Article 20 of the Covenant (restricting various forms of
speech) was of particular concern - sufficient to lead some representatives of the press community to speak against ratification.4 3 By
requiring the prohibition of propaganda for war and advocacy of
national, racial, or religious hatred that constitutes incitement to
discrimination, hostility, or violence, it would clearly contravene the
free speech protections of the First Amendment to the
Constitution.44
Accordingly, a clear and strong reservation was considered neces41. The principal changes concerned replacement of the reservation on federalism with an understanding, a revision to the reservation on the First Amendment, acceptance of the prohibition
against imposing the death penalty on pregnant women, and deletion of the understanding interpreting certain rights enumerated in Article 10 as "goals for progressive achievement." Among
the new elements were an additional reservation regarding Article 7 (cruel, inhuman, or degrading
treatment or punishment), an understanding concerning equal protection and nondiscrimination,
and a declaration concerning restrictions and limitations on rights.
42. See Reid v. Covert, 354 U.S. 1,16-17 (1957).
43. See Hearing, supra note 1,at 43-46 (statement of Harold W. Andersen, Chairman, World
Press Freedom Committee).
44. While it has long been recognized that the guarantee of free speech is not absolute and that
certain forms of incitement of violence or "hate speech" may be properly restricted or regulated,
see, e.g., R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992); Wisconsin v. Mitchell, 113 S. Ct.
2194 (1993), there was general agreement that Article 20 would intrude into constitutionally protected areas.
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SIGNIFICANCE OF THE RESERVATIONS
1191
sary: "Article 20 does not authorize or require legislation or other
action by the United States that would restrict the right of free
speech and association protected by the Constitution and laws of the
United States. 45
This provision was generally supported by the various legal and
human rights interest groups and specialists who testified at the
Senate Foreign Relations Committee hearing or submitted written
comments for the record."'
2. Capital Punishment
Article 6, paragraph 5 of the Covenant prohibits imposition of the
death sentence on pregnant women or for crimes committed by persons below eighteen years of age.
For many opponents of the death penalty, even this restriction is
inadequate. Some find in the general guarantee of the inherent right
to life, and in the protection against arbitrary deprivation of life,
both of which are protected in Article 6(1), a prohibition against
capital punishment. If that were true, there would have been no
need for either the second paragraph of Article 6 (which provides
that in countries which have not abolished the death penalty, it may
only be imposed for the most serious crimes in accordance with the
law in force at the time the crime was committed) or for the Second
Optional Protocol to the Covenant (which prohibits the death penalty in all circumstances, and which came into force in July 1991
for those states which have adhered to it).
In the United States, the citizens in a majority of states have to
date determined, through the democratic process, to retain the
death penalty for the most serious crimes. Moreover, recent Supreme Court decisions have upheld state laws permitting imposition
of the death penalty for especially serious crimes committed by
juveniles aged sixteen and seventeen, having determined that capital
punishment does not in and of itself violate the Eighth Amendment's protection against cruel and unusual punishment.4 7
Accordingly, the United States formally reserved the right, subSENATE COMM. ON FOREIGN RELATIONS, supra note 1,at I1,reprinted in 31 I.L.M. at 653.
46. See, e.g., Hearing, supra note 1,at 85 (statement of the American Bar Association); id. at
161 (statement of the Association of the Bar of the City of New York); id. at 107-09 (statement
of the International Human Rights Law Group); id. at 168 (statement of the ACLU).
47. See, e.g., Stanford v. Kentucky, 492 U.S. 361 (1989); Thompson v. Oklahoma, 487 U.S.
815 (1988). In Thompson, the Supreme Court held that the execution of people for crimes committed while they were under the age of 16 was unconstitutional. 487 U.S. at 838.
45.
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ject to its constitutional constraints, to impose capital punishment
on any person (other than a pregnant woman) duly convicted under
existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons
below eighteen years of age."8 This reservation leaves open the possibility that Congress might at some point adopt legislation prohibiting the imposition of the death penalty for crimes committed by
those below age eighteen. Legislation giving effect to the Covenant's
prohibition against executions of pregnant women, which was accepted by the United States, was not considered necessary since
neither the federal government nor the state governments in fact
carry out such executions.
Opponents of the death penalty, such as Amnesty International,
the ACLU, and the American Bar Association, were understandably vociferous in their opposition to this reservation."9 The Association of the Bar of the City of New York contended that "[t]he fact
that the U.S. Constitution contains no prohibition against such executions is no justification for a refusal to adhere to a more humane
standard reflecting the views of the international community." 50 The
Minnesota Lawyers International Human Rights Committee said
that in preserving the possibility of the death penalty for crimes
committed by persons under the age of eighteen at the time of the
crime, "the reservation is clearly out of step with international standards and consensus." 5 The underlying question, however, is one of
national policy, which appears to have the democratically expressed
support of a majority of citizens in a majority of states.
3.
Cruel, Inhuman, or Degrading Treatment or Punishment
Article 7 of the Covenant provides that no one shall be subjected
to torture or cruel, inhuman, or degrading treatment or punishment,
or be subjected without his free consent to medical or scientific
experimentation.
In its consideration of the Torture Convention, which contains
48. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 1I, reprinted in 31 I.L.M. at 653.
49. See Hearing, supra note I, at 86 (statement of the American Bar Association); id. at 95
(statement of Amnesty International); id. at 170 (statement of the ACLU); see also id. at 109-11
(statement of the International Human Rights Law Group); id. at 137 (statement of the Lawyers
Committee for Human Rights); id. at 145 (statement of the American Branch of the Human
Rights Committee of the International Law Association).
50. Id. at 162 (statement of the Association of the Bar of the City of New York).
51. Id. at 152 (statement of the Minnesota Lawyers International Human Rights Committee).
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SIGNIFICANCE OF THE RESERVATIONS
1193
substantively similar but more detailed provisions, the United States
identified a possible dissonance between these provisions and the
prohibitions of the Fifth, Eighth, and/or Fourteenth Amendments to
the Constitution against cruel and unusual punishment. More particularly, the Human Rights Committee, like the European Court of
Human Rights in its Soering decision,"2 has adopted the view that
prolonged judicial proceedings in cases involving capital punishment
could in certain circumstances constitute cruel, inhuman, or degrading treatment or punishment, even though such proceedings are entirely lawful under U.S. constitutional principles.5 a Accordingly, the
United States proposed to take a formal reservation to the Torture
Convention to the effect that the United States considers itself
bound by Article 7 to the extent that "cruel, inhuman or degrading
treatment or punishment" means the cruel and unusual treatment or
punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States. 4
To insure uniformity of interpretation as to the obligations of the
United States under the Covenant and the Torture Convention on
this point, the United States took an identical reservation to the
Covenant. 5
Reaction to this reservation has been mixed so far. Some, including the American Bar Association, expressed support, 56 while others
saw it as unnecessarily preventing extension of this fundamental
protection beyond the confines of the Eighth Amendment. 7 For example, it prevents extension of the right to schoolchildren, mental
patients, and to those not convicted of a crime, such as pretrial detainees. The Lawyer's Committee for Human Rights found the res52. Socring v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989); see also Richard B. Lillich,
LAW 128 (1991).
53. Reid v. Jamaica, U.N. GAOR Hum. Rts. Comm., 45th Sess., Supp. No. 40 at 85, 92
(1990); Pratt & Morgan v. Jamaica, U.N. GAOR Hum. Rts. Comm., 44th Sess., Supp. No. 40 at
222 (1989)..
54. SENATE COMM. ON FOREIGN RELATIONS, CONVENTION AGAINST TORTURE AND OTHER
The Soering Case, 85 AM. J. INT'L
CRUEL. INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT,
S.
EXEC. REP.
No. 30, 101st
Cong., 2d Sess., at 8, 26 (1990).
55.
SENATE COMM. ON FOREIGN RELATIONS,
supra note 1,at 12, reprinted in 31 I.L.M. at 654.
56. See Hearing, supra note 1, at 86 (statement of the American Bar Association).
57. See, e.g.. id. at 95 (statement of Amnesty International); id. at 145 (statement of the
American Branch of the Human Rights Committee of the International Law Association); id. at
170 (statement of the ACLU). The International Human Rights Law Group thought the reservation was unnecessary, noting that the Human Rights Committee had reached a different result in
Pratt & Morgan v. Jamaica than the European Court of Human Rights had reached in its Soering decision. Id. at 112-13.
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ervation objectionable, stating that the United States should bring
its laws into conformity with international standards. 58 It would appear, however, preferable to do so through the adoption of appropriate legislation rather than reliance on the treaty power.
4.
Post-Offense Reductions in Penalty
Under U.S. law, federal as well as state, the penalty in force at
the time the crime was committed generally applies to an offender.
By contrast, Article 15(1) obliges States Party to give offenders the
benefit of any post-offense reductions in penalty. In U.S. practice,
such reductions in sentence (e.g., through legislative enactment) are
in fact taken into account in sentencing decisions and are often
granted in practice when there have been subsequent statutory
changes.
Nonetheless, because current federal law, as well as the law of
most states, does not require such relief and, in fact, contains a contrary presumption, and because upon consideration there was no disposition to effect a change in that law through adherence to the
Covenant, it was considered necessary to take a reservation stating
that the United States does not adhere to the third clause of paragraph 1 of Article 15.
The principal criticism of this reservation has been simply that
the United States should bring its law into conformity with the
agreed international standard. As stated by the Lawyer's Committee for Human Rights, the fact that the practice is not now required
by U.S. law is not a proper reason for refusing to require it by
treaty."0 Here again, the issue is one of the proper modality for effecting such a change.
5.
Treatment of Juveniles
United States law, policy, and practice are generally in compliance with the Covenant's requirements regarding separate treatment
58. Id. at 137 (statement of the Lawyer's Committee for Human Rights).
59. SENATE COMM. ON FOREIGN RELATIONS, supra note I, at 13, reprinted in 31 I.L.M. at 654.
60. Hearing, supra note 1, at 137 (statement of the Lawyers Committee for Human Rights);
see also id. at 146 (statement of the American Branch of the Human Rights Committee of the
International Law Association) (stating that it was "unaware of any substantial policy reasons for
failing to bring United States practice into conformity with this norm"); id. at 170 (statement of
the ACLU) (stating that "compliance with the international norm would hardly be burdensome
and would conform to the spirit of the Covenant").
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SIGNIFICANCE OF THE RESERVATIONS
1195
of juveniles in the criminal justice system. 1 Nonetheless, close consideration of these provisions indicated that it would be prudent to
retain a measure of flexibility to address exceptional circumstances
in which trial or incarceration of juveniles as adults may well be
appropriate. Exceptional circumstances might include prosecution of
juveniles as adults based on their criminal histories or the nature of
their offenses, and incarceration of particularly dangerous juveniles
as adults in order to protect other juveniles in custody.
While noting that it remains supportive of the Covenant's provisions regarding separate treatment of juveniles and that current domestic practice is in fact in compliance, the United States nonetheless reserved the right in exceptional circumstances to treat juveniles
as adults, notwithstanding the provisions of paragraphs 2(b) and 3
of Article 10 and paragraph 4 of Article 14.62 In addition, the reservation extended to those provisions with respect to individuals who
volunteer for military service prior to the age of eighteen. The reference to "exceptional circumstances" is drawn from Article 10, paragraph 2(a), which permits the incarceration of accused adults with
convicted adults under such conditions.
This reservation attracted little opposition, with the American
Bar Association noting simply that it was not necessary because the
policy and practice of the United States are generally in compliance
with and supportive of the Covenant's provisions regarding these
requirements. 3
B.
Understandings
1. Equal Protection and Nondiscrimination
The Constitution and laws of the United States guarantee all persons equal protection of the law and provide extensive protections
against discrimination. As in most if not all legal systems, however,
U.S. law does permit certain lawful distinctions to be made among
individuals when those distinctions are, at minimum, rationally re61. See, e.g., Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. §§ 5601-5780
(Supp. III 1991).
62. SENATE COMM. ON FOREIGN RELATIONS, supra 1, at 13-14, reprinted in 31 I.L.M. at 65455.
63. Hearing, supra note 1, at 87. Similarly, the ACLU said this reservation was "not particularly disturbing" because they expressed support for the Covenant's goals on this matter. Id. at
171. The American Branch of the Human Rights Committee of the International Law Association
stated that the reservation "does not appear especially objectionable." Id. at 146. The International Human Rights Law Group was not opposed but considered it unnecessary. Id. at 116.
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lated to a legitimate governmental objective. By contrast, Articles
2(1) and 26 of the Covenant prohibit discrimination not only on the
bases of "race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth," but also on any
"other status," a term which could be interpreted to prohibit even
legitimate, nondiscriminatory distinctions. 4
Current U.S. civil rights law is not so open-ended. Discrimination
is only prohibited for specific statuses, and there are exceptions
which allow for distinctions. For example, under the Age Discrimination Act of 1975, age may be taken into account in certain circumstances.6 5 In addition, U.S. law permits additional distinctions,
as between citizens and noncitizens and between different categories
of noncitizens, especially in the context of the immigration laws.
The Human Rights Committee itself has observed that not all differentiation of treatment constitutes discrimination, if the criteria
for such differentiation are reasonable and objective and if the aim
is to achieve a purpose which is legitimate under the Covenant. In
its General Comment on nondiscrimination, for example, the Committee noted that the enjoyment of rights and freedoms on an equal
footing does not mean identical treatment in every instance.66
Because of the central importance of the nondiscrimination obligation under the Covenant, the United States felt it appropriate to
clarify, through an understanding, its interpretation that the nondiscrimination provisions of the Covenant, in particular those set forth
in Article 2(1) and Article 26, which it accepts, do not prevent such
distinctions when they are, at minimum, rationally related to a legitimate governmental objective.67 In addition, the United States
stated its understanding that the prohibition in Article 4(1) on discrimination in time of emergency solely on status of race, color, sex,
language, religion, or social origin does not prohibit distinctions that
may have a disproportionate effect upon persons of a particular
status. 68
Most commentators appear to have agreed with the American
64.
65.
66.
Doc.
equal
67.
655.
68.
ICCPR, supra note 1,arts. 2(1), 26, 999 U.N.T.S. at 173, 179.
Age Discrimination Act of 1975, 42 U.S.C. §§ 6101-6107 (1988).
See the Committee's General Comment 18 [37] (nondiscrimination) of Nov. 21, 1989, U.N.
CCPR/C/21/Rev. 1/Add. 1,at 3 (1989) ("The enjoyment of rights and freedoms on an
footing, however, does not mean identical treatment in every instance.").
SENATE COMM. ON FOREIGN RELATIONS, supra note 1,at 14-15, reprinted in 31 I.L.M. at
Id.
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SIGNIFICANCE OF THE RESERVATIONS
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Bar Association (ABA) in considering this understanding unnecessary, both because U.S. law generally complies with the nondiscrimination requirements of the Covenant and because the Human
Rights Committee has in fact stated that differentiation is permissible if the criteria are reasonable and objective and if the aim is to
achieve a legitimate purpose under the Covenant.6 9 Moreover, the
ABA pointed out, if those provisions were construed to prohibit any
distinctions between citizens and noncitizens, no State Party would
be able to satisfy this impossible standard. The ACLU, however,
found the understanding "an imprecise and erroneous statement of
current national law [which] confuses well-established equal protection standards for different groups, merging them all into one vague
and misleading test. . . . This understanding is thus at best superfluous, at worst a misstatement of our jurisprudence." 70 The ACLU
comment misses the point, however, since the difficulty lies in the
language of the Covenant, not the understanding.
2. Right to Compensation
Articles 9(5) and 14(6) of the Covenant can be read to give every
individual an absolute right in all situations to recover compensation
for unlawful arrest or detention or for miscarriage of justice. While
it is questionable that these provisions were in fact intended to set
an international standard requiring payment of compensation in all
such cases, the negotiating history on this point was considered ambiguous at best. And while it is doubtful that every state party to
the Covenant accords such rights to everyone within its jurisdiction,
there appears to be no authoritative interpretation limiting Article
9(5), for example, to arbitrary arrests and detentions or defining the
content of "miscarriage of justice" as set forth in Article 14(6).
Within the United States, federal law does provide individuals an
enforceable right to seek compensation against the persons responsible for unlawful arrests and detentions and, in certain instances,
against the government itself." It does not, however, generally ac69. Hearing, supra note 1,at 88 (statement of the American Bar Association); see also id. at
118 (statement of the International Human Rights Law Group) (stating that the negotiating record illustrates that states intended to preserve the right to make "reasonable differentiations"); id.
at 163 (statement of the Association of the Bar of the City of New York); id. at 154 (statement of
the Minnesota Lawyers International Human Rights Committee).
70. Id. at 171 (statement of the ACLU).
71. The Federal Tort Claims Act, for example, makes the United States liable for false arrest
and imprisonment by federal law enforcement officers. 28 U.S.C. § 2680(h) (1988). The Supreme
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cord a right to compensation for an arrest or detention made in good
faith but ultimately determined to have been unlawful (for example,
through a revised interpretation of constitutional principles by the
Supreme Court). Moreover, the doctrine of sovereign immunity generally restricts opportunity for recovery of compensation against the
government. For instance, military personnel may not sue the federal government for injuries incident to their military service, 72 including alleged torts of the kind covered by Articles 9(5) and 14(6).
Given the multiplicity of state and local jurisdictions in the United
States, it is possible that in some other situations, a victim of unlawful arrest or detention might not in fact be able to recover compensation, notwithstanding the variety of compensatory schemes which
exist in those jurisdictions.
Accordingly, U.S. adherence was conditioned on the understanding that the proper reading of Articles 9(5) and 14(6) is that states
are obliged to provide effective and enforceable mechanisms by
which victims of unlawful arrest or detention or a miscarriage of
justice may seek and, where justified, obtain such compensation either from the responsible individual or from the appropriate governmental entity. 3 Moreover, the actual entitlement to compensation
may be subject to reasonable requirements of domestic law.
Here again, there does not seem to have been much controversy,
because U.S. practice is in fact considered to be in compliance with
the requirements of the Covenant.7 If anything, this understanding
reflects an abundance of caution on the part of the government, justified by the negotiating record.
3. Separate Treatment of the Accused
Article 10, paragraph 2 requires that accused persons be segregated from the convicted "save in exceptional circumstances" and
that juveniles who are accused of a crime be separated from adults.
Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), held that when there is a
Fourth Amendment violation by a federal official, there may be a federal common law remedy for
damages. Id. at 390-97. Similarly, the Supreme Court has held that § 1983 of title 42 provides a
remedy for a victim of unlawful arrest and imprisonment at the federal or state level. Monroe v.
Pape, 365 U.S. 167, 172 (1961).
72. Feres v. United States, 340 U.S. 135, 146 (1950).
73. SENATE COMM. ON FOREIGN RELATIONS, supra note I, at 16, reprinted in 31 I.L.M. at 656.
74. See, e.g., Hearing,supra note 1, at 121 (statement of the International Human Rights Law
Group); id. at 139 (statement of the Lawyer's Committee for Human Rights); id. at 171 (statement of the ACLU). The American Bar Association also supported the Administration's proposal.
Id. at 88.
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SIGNIFICANCE OF THE RESERVATIONS
1199
While, in general, federal law and prison policy conform to these
requirements, some exceptions exist. For example, prison authorities
are permitted to take into account such factors as a prisoner's overall dangerousness when determining treatment. Prisoners may also
waive their right to segregation in order to participate in special
programs. Within the military justice system, segregation of the accused from the convicted cannot always be guaranteed in light of
military exigencies.
For these reasons, the United States conditioned its adherence on
the understanding that the reference to "special circumstances" in
Article 10(2)(a) permits the imprisonment of an accused person
with convicted persons where appropriate in light of an individual's
overall dangerousness and allows accused persons to waive their
75
rights to segregation from convicts.
Paragraph 3 of Article 10 states that the essential aim of treatment of prisoners in the penitentiary system is reformation and social rehabilitation. The United States also stated its understanding
that this provision does not diminish the goals of punishment, deterrence, and incapacitation (i.e., restraint) as additional legitimate
purposes for a penitentiary system.76
The American Bar Association, among others, supported this provision, while the ACLU found it "superfluous and harmful, insofar
as it expresses an objection to achieving the higher international
' 77
standards embodied in the Covenant."
4. Right to Counsel, Compelled Witness, Double Jeopardy
Paragraphs 3(b) and 3(d) of Article 14 provide a defendant in a
criminal proceeding the right to choose his or her own counsel. Even
though the right to counsel is broadly recognized and enforced
within the United States, U.S. law does recognize some circumstances, such as indigence, in which a defendant may not in fact
choose his own counsel but is instead furnished legal representation
through the public defender's office or by court appointment. Nor
does federal law recognize a right to counsel with respect to offenses
75. SENATE COMM. ON FOREIGN RELATIONS, supra note 1,at 16-17, reprinted in 31 I.L.M. at
656.
76. Id.
77. Hearing, supra note 1, at 171 (statement of the ACLU). But see id. at 88-89 (statement of
the American Bar Association); id. at 121-22 (statement of the International Human Rights Law
Group).
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for which imprisonment may not be imposed. The United States accordingly stated its understanding that these subparagraphs do not
require the provision of a criminal defendant's counsel of choice
when the defendant is provided with court-appointed counsel on
ground of indigence, when the defendant is financially able to retain
alternative counsel, or when imprisonment is not imposed."
Paragraph 3(e) of Article 14 entitles a defendant to obtain witnesses on his behalf under the same conditions as witnesses against
him have been obtained. United States law permits a defendant to
obtain witnesses on his own behalf to the extent necessary for his
defense; absent such a showing of necessity, the defendant is not
entitled to compel the attendance and examination of witnesses. 9
Thus, the United States conditioned its acceptance of this provision
on an understanding that it does not prohibit a requirement that the
defendant make a showing that any witness whose attendance he
seeks to compel is necessary for his defense.80
Finally, paragraph 7 of Article 14 prohibits an individual from
being tried or punished again for an offense for which he or she has
already been finally convicted or acquitted. The prohibition against
double jeopardy is well-recognized in American jurisprudence. However, under the Constitution, the prohibition attaches only to multiple prosecutions by the same sovereign and does not prohibit trial of
the same defendant for the same crime in, for example, state and
federal courts or in the courts of two states."' The United States,
therefore, stated its understanding that the Covenant's prohibition
upon double jeopardy applies only when the judgment of acquittal
has been rendered by a court of the same governmental unit,
whether the federal government or a constituent unit, that is seeking
a new trial for the same offense. 2
Criticism of these proposed understandings was distinctly muted.
The principal objections focused on the double jeopardy issue, with
one view (represented by the Lawyer's Committee for Human
78. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 17, reprinted in 31 I.L.M. at 656.
79. United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) (holding that the Sixth Amendment does not grant to a criminal defendant the right to secure the attendance and testimony of
any and all witnesses and that it merely guarantees the defendant compulsory process in his or her
favor).
80. SENATE
COMM. ON FOREIGN RELATIONS, supra note 1, at 17, reprinted in 31 I.L.M. at 656.
81. Petite v. United States, 361 U.S. 529 (1960); Benton v. Maryland, 359 U.S. 784 (1960). A
recent example is that of the officers who were charged with the beating of Rodney King. See
United States v. Koon, 1993 WL 387860, *15 & n.12 (C.D. Cal. 1993).
82. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 17, reprinted in 31 I.L.M. at 17.
1993]
SIGNIFICANCE OF THE RESERVATIONS
1201
Rights) favoring a prohibition against successive state and federal
prosecutions, 3 and another (represented by the International
Human Rights Law Group) calling instead for a narrowing of the
provision so that it would permit only a second prosecution at the
federal level to remedy an unsatisfactory prosecution or investigation of a civil rights violation at the local level.8 4
5. Federalism
One of the most difficult problems for nonunitary states to resolve
in considering human rights treaties, especially when the central
government is one of limited or delegated powers, is to determine
when and to what extent adherence to such a treaty may properly
bind the constituent units. This is not a new problem by any means,
but it remains a significant one.
By expressly extending the provisions of the Covenant to all parts
of federal states, Article 50 exacerbates the problem. In light of the
intent behind the article (it was included precisely to prevent federal
states from limiting their obligations to areas within the federal government's authority), 5 a reservation exempting constituent units
might readily be characterized as contrary to the object and purpose
of the Article, if not the Covenant as a whole.
In adhering to the Covenant, the United States followed the precedent it had earlier established with respect to the Torture Convention by indicating, in an admittedly somewhat convoluted understanding, that it will carry out its obligations under the Covenant in
a manner consistent with the federal nature of its form of government. More precisely, the understanding states that the Covenant
"shall be implemented by the Federal Government to the extent
that it exercises legislative and judicial jurisdiction over the matters
covered therein, and otherwise by the State and local governments." 88 As to matters within the jurisdiction of state and local
governments, "the Federal Government shall take measures appropriate to the Federal system" to ensure that the state and local governments fulfill their obligations.8 7
83. See Hearing, supra note 1, at 140 (statement of the Lawyers Committee for Human
Rights).
84. Id. at 124-25 (statement of the International Human Rights Law Group).
85. See THE INTERNATIONAL BILL OF RIGHTS, supra note 1, at 50-51.
86. SENATE COMM. ON FOREIGN RELATIONS, supra note 1,at 18, reprinted in 31 I.L.M. at 657.
87. Id.
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It is important to note that this provision is not a reservation and
was not intended to modify or limit U.S. obligations under the Covenant, but rather concerns the steps to be taken domestically by the
respective federal and state authorities. The understanding serves to
emphasize domestically that there is no intent to alter the constitutional balance of authority between the state and local governments
or to use the provisions of the Covenant to "federalize" matters now
within the competence of the states. It also serves to notify other
States Party that the United States will implement its obligations
under the Covenant by appropriate legislative, executive, and judicial means, federal or state, and that the federal government will
remove any federal inhibition to the states' abilities to meet their
obligations in this regard.
Reaction to this important statement ran from the support of the
American Bar Association and Amnesty International"8 to the view
of the Lawyer's Committee for Human Rights that it is "ambiguous
and confusing" and not constitutionally necessary because
"[flederal authority in this area is clear." 89
C. Declarations
1. Not Self-Executing
As a matter of domestic law, the United States declared Articles
1 through 27 of the Covenant to be "not self-executing." 90 As in the
case of the understanding concerning federalism, this declaration
does not affect the international obligations of the United States
under the Covenant. Rather, it means that the Covenant does not,
by itself, create private rights enforceable in U.S. courts. That can
be done only by means of legislation enacted by the Congress and
the president in the ordinary course. This approach reflected the
view that U.S. compliance with the Covenant should be overseen
88. Hearing, supra note 1, at 89-90 (statement of the American Bar Association); id. at 98
(statement of Amnesty International). The International Human Rights Law Group, however,
suggested different wording clarifying the responsibility of the federal government to ensure compliance of its constituents with the international obligations they assume under the Covenant. Id.
at 127.
89. Id. at 140 (statement of the Lawyers Committee on Human Rights, citing Missouri v.
Holland, 252 U.S. 416 (1920)). The Association of the Bar of the City of New York objected to
this understanding because it feared that other countries would interpret it as limiting the responsibility of the federal government to matters of federal law, leaving implementation by the states
in serious doubt. Id. at 77, 162-64.
90. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 19, reprinted in 31 I.L.M. at 657.
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SIGNIFICANCE OF THE RESERVATIONS
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through the mechanisms established by the Covenant, rather than
through litigation by private parties in U.S. courts. The specific language of the Covenant is in some respects imprecise and could invite
substantial litigation over issues at the periphery of the Covenant's
essential object and purpose. The fundamental rights and freedoms
protected by the Covenant are also guaranteed as a matter of U.S.
law, constitutional and statutory, and can be effectively asserted by
individuals in the judicial system.
Understandably, this proviso was most criticized by those organizations with an interest in using the Covenant as a tool to compel or
prevent governmental action, either through litigation or other direct means. 91 The comments of the International Human Rights
Law Group were especially sharp, noting that no other country has
made such a reservation or declaration and contending that rendering all the substantive provisions of the Covenant non-self-executing
may be so inconsistent with the language of the Covenant as to violate the principles of Article 19 of the Vienna Convention on
Treaties.92
2. Limitations on Rights
More generally, the Covenant recognizes the possibility that
States Party may in exceptional circumstances limit or circumscribe
certain rights otherwise protected. For example, Article 12(3) permits States Party to impose restrictions on the right to liberty of
movement and freedom to choose residence when "necessary to protect national security, public order (ordre public), public health or
morals or the rights and freedoms of others," when consistent with
the other rights recognized in the Covenant."3 Similar restrictions
are permissible with regard to the right of peaceful assembly (Article 21) and freedom of association (Article 22(2)); somewhat narrower restrictions are authorized with respect to the right to a fair
91. See, e.g., Hearing, supra note 1, at 98 (statement of Amnesty International); id. at 140
(statement of the Lawyers Committee for Human Rights); id. at 171 (statement of the ACLU).
The American Branch of the International Law Association advocated leaving the issue for resolution by the courts, noting that a blanket attempt to prevent U.S. citizens and others from invoking
the Covenant is unnecessary and unwise, especially since the United States has not accepted the
Optional Protocol to the Covenant. Id. at 148. Others, including the ABA, thought that the over-
riding consideration was prompt ratification and hoped for the early adoption of implementing
legislation conforming U.S. law to the Covenant to the extent permitted by the Constitution. Id. at
90.
92. Id. at 90-91 (statement of the International Human Rights Law Group).
93. ICCPR, supra note 1, art. 12(3), 999 U.N.T.S. at 176.
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and public hearing (Article 14(1)), freedom of religion (Article
18(3)), and the right to freedom of expression (Article 19(3)). Certain limited derogations from recognized rights are also permitted
during times of public emergency threatening the life of the nation
under Article 4.
In a number of instances, such restrictions would encounter constitutional obstacles within the United States. An example would be
limiting freedom of expression under Article 19(3). More generally
there was some concern that once ratified the Covenant might be
relied upon to justify limitations that are not now recognized in U.S.
law. However, since under the Covenant these restrictions are permissible rather than required, it was not considered necessary to
condition U.S. ratification upon a reservation. Nonetheless, the
United States believes as a general matter that other States Party
should only resort to such restrictions in the most unusual and extenuating circumstances.
To emphasize this view to other current and potential States
Party, the United States adopted a declaration stating its view that
States Party "should wherever possible refrain from imposing any
restrictions or limitations on the exercise of the rights recognized
and protected by the Covenant, even when such restrictions and lim' For the
itations are permissible under the terms of the Covenant." 94
United States, the undertaking in Article 5(2) - that fundamental
human rights existing in any State Party may not be diminished on
the pretext that the Covenant recognized them to a lesser extent has particular relevance to the restrictions permitted by Article
19(3). The declaration also states that the United States will continue to adhere to the constraints of its Constitution in respect of all
such restrictions and limitations.
This provision was generally regarded favorably. 9 5
3.
Human Rights Committee
The United States has made a declaration under Article 41 accepting the competence of the Human Rights Committee (Committee) to receive and consider state-to-state complaints by and against
the United States on a reciprocal basis, so long as the state making
94. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 18, reprinted in 31 I.L.M. at 657.
95. Hearing, supra note 1, at 90-91 (statement of the American Bar Association); id. at 99
(statement of Amnesty International); id. at 168-69 (statement of the ACLU). But see id. at 141
(statement of the Lawyers Committee on Human Rights, finding the declaration unnecessary).
1993]
SIGNIFICANCE OF THE RESERVATIONS
1205
or receiving the complaint has done likewise. 96 The United States
intends to participate actively in the work of the Committee, in part
because of the hope that the Committee can contribute even more to
the development of a generally accepted international law of human
rights.
Here again, general support was expressed. 97
4. International Law
The final declaration recorded the long-standing view of the
United States that the inherent right of all peoples to enjoy and
utilize their natural wealth and resources fully and freely, as recognized in Article 47, may only be exercised in accordance with international law.98 Nothing in the Covenant permits States Party to
avoid their obligations under international law or justifies arbitrary
deprivation of property.
Although the American Bar Association supported this provision,99 others expressed relatively tepid concern that it was
unnecessary."'
CONCLUSION
The debate over ratification of the Covenant, and more importantly the forthcoming debate over whether the United States
should proceed to ratify other pending human rights treaties and on
what terms, turns in large part on whether, taken individually and
collectively, these reservations, understandings, and declarations
were necessary and, even if warranted, whether they represented too
high a price to pay to obtain Senate approval.
The above analysis indicates that the most common criticisms of
the specific elements of the package have been that they were not
legally necessary and that the United States should have conformed
96. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 20, reprinted in 31 I.L.M. at
658.
97. See, e.g., Hearing,supra note 1, at 91 (statement of the American Bar Association); id. at
133-34 (statement of the International Human Rights Law Group); id. at 141 (statement of the
Lawyers Committee on Human Rights); id. at 149 (statement of the American Branch of the
Human Rights Committee of the International Law Association).
98. SENATE COMM. ON FOREIGN RELATIONS, supra note 1, at 21, reprinted in 31 I.L.M. at
658.
99. Hearing, supra note 1, at 91 (statement of the American Bar Association).
100. See id. at 134-35 (statement of the International Human Rights Law Group); id. at 141
(statement of the Lawyer's Committee on Human Rights).
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its laws and practices to the international standards reflected in the
Covenant. There seems to be general agreement that only one reservation, interposing the First Amendment as a bar to Article 20, is
constitutionally required. As the Lawyers Committee on Human
Rights has contended, the others appear to reflect three operative
principles: (1) that the United States would not commit itself to do
anything that would require a change in present U.S. law or practice; (2) that the treaty should not be self-executing but should require implementation by legislation; and (3) that subjects within the
jurisdiction of the states might be excluded from the obligation of
the treaty or left exclusively to implementation by legislation by the
states.101
The response to these objections is straightforward. The premise
underlying most of the reservations, understandings, and declarations was the conclusion that existing U.S. law, even if not strictly in
conformity with the precise language of the Covenant, was acceptable and indeed preferable. A subsidiary concern was a desire not to
effectuate changes to domestic law by means of the treaty-making
power. There is little question that under Article VI of the Constitution, the federal government could in fact have made necessary
changes to federal law and required parallel changes in state and
local law to give effect to the Covenant's provisions. For many reasons, including those rooted in respect for our federal system of government, there was substantial resistance in both the Executive
branch and the Senate to exercising that authority. But the principal conclusion was, as a policy matter, not to seek changes to U.S.
law at those relatively minor points at which it diverged from the
Covenant.
The experience gained in obtaining advice and consent to ratification of the Covenant suggests strongly that, in pursuing ratification
of additional human rights treaties, serious consideration should be
given to the simultaneous submission of proposed implementing legislation wherever U.S. law differs from the treaty requirements and
it is determined that conforming changes to that U.S. law are desirable. As a general matter, conformity with widely accepted international human rights standards is a worthy and achievable goal, and
it should be U.S. policy to adopt as few reservations, understandings, and declarations as possible. Modification of U.S. law through
101. Id. at 136 (statement of the Lawyers Committee on Human Rights).
1993]
SIGNIFICANCE OF THE RESERVATIONS
1207
the legislative process would eliminate the need for provisos in many
instances.
In their details, however, not all internationally recognized human
rights treaties are in fact superior to established U.S. principles and
practices. By definition, the negotiation of multilateral treaties between states with widely differing legal systems produces compromises and ambiguities. Where the treaty provision is inferior,
there is no reason for the United States to adhere to it, even if that
could be done constitutionally.
The task, therefore, is, first, to identify any provisions of the
treaty which conflict with or raise significant questions about U.S.
law, and, second, to determine whether a change to the relevant
U.S. law is possible and desirable or whether an appropriate reservation, understanding, or declaration must be taken to condition
U.S. obligations under the instrument. Proposed changes to U.S.
law should be presented in the form of draft legislation at the time
the Senate considers the question of advice and consent to ratification. Where changes are not desirable, ratification should be conditioned upon an appropriate caveat. Ideally, both the Executive
Branch and the Congress would work in open partnership with each
'other
in this process, together with interested nongovernmental
organizations and knowledgeable individuals.